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\\jciprod01\productn\M\MIA\67-2\MIA204.txt unknown Seq: 1 30-JAN-13 11:55 The False Promise of Proffitt STEPHEN K. HARPER* I. INTRODUCTION ...................................................... 413 R II. DEATH PENALTY LAW IN FLORIDA ...................................... 416 R III. THE STATUTORY AGGRAVATING FACTORS ................................ 416 R IV. RACE .............................................................. 417 R V. FELONY MURDER .................................................... 419 R VI. PRIOR VIOLENT CRIME ................................................ 420 R VII. COLD, CALCULATED, AND PREMEDITATED ................................ 421 R VIII. VICTIM IMPACT EVIDENCE ............................................. 423 R IX. NON-UNANIMOUS JURY AND Ring Problems .............................. 424 R X. TOO MUCH DISCRETION TO THE TRIAL COURT ............................ 426 R XI. WHO IS THE PROSECUTOR? ............................................ 429 R XII. PRACTICAL AND LEGAL LIMITATIONS OF THE FLORIDA SUPREME COURT ...... 430 R XIII. WHO IS THE PUBLIC DEFENDER AND HOW DOES SHE ALLOCATE HER LIMITED RESOURCES? ........................................................ 432 R XIV. FURTHER LEGISLATIVE AND BUDGETARY CONSTRAINTS ..................... 434 R XV. ADDITIONAL PROBLEMS ............................................... 434 R XVI. CONCLUSION ........................................................ 435 R I. INTRODUCTION In 1972, in Furman v. Georgia, 1 a per curiam decision (with five separate concurrences) by the U.S. Supreme Court, the Court found the death penalty to be unconstitutional because it gave juries an “untram- meled discretion to impose or withhold the death penalty.” 2 In a now famous quote, Justice Stewart wrote in his concurrence that it was “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” 3 Juries could simply impose the death penalty in an arbitrary and capricious manner. 4 Justice Stewart went on to say, “I simply con- clude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” 5 As it stood, there were no objective standards as to in which cases the death penalty should be properly imposed on a defendant. 6 * Capital lawyer and Adjunct Professor, University of Miami School of Law. 1. 408 U.S. 238 (1972) (per curiam). 2. Gregg v. Georgia, 428 U.S. 153, 196 n.47 (1976) (plurality opinion) (discussing the holding of Furman). 3. Furman, 408 U.S. at 309 (Stewart, J., concurring). 4. See id. at 309–10. 5. Id. at 310. 6. See id. at 313 (White, J., concurring) (“[T]he death penalty is exacted with great infrequency even for the most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.”). 413
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    The False Promise of Proffitt


    I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413 RII. DEATH PENALTY LAW IN FLORIDA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 R

    III. THE STATUTORY AGGRAVATING FACTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 RIV. RACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 RV. FELONY MURDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 R

    VI. PRIOR VIOLENT CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420 RVII. COLD, CALCULATED, AND PREMEDITATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421 R

    VIII. VICTIM IMPACT EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 RIX. NON-UNANIMOUS JURY AND Ring Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424 RX. TOO MUCH DISCRETION TO THE TRIAL COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426 R

    XI. WHO IS THE PROSECUTOR? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429 RXII. PRACTICAL AND LEGAL LIMITATIONS OF THE FLORIDA SUPREME COURT . . . . . . 430 R

    XIII. WHO IS THE PUBLIC DEFENDER AND HOW DOES SHE ALLOCATE HER LIMITEDRESOURCES? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432 R

    XIV. FURTHER LEGISLATIVE AND BUDGETARY CONSTRAINTS . . . . . . . . . . . . . . . . . . . . . 434 RXV. ADDITIONAL PROBLEMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 R

    XVI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 R


    In 1972, in Furman v. Georgia,1 a per curiam decision (with fiveseparate concurrences) by the U.S. Supreme Court, the Court found thedeath penalty to be unconstitutional because it gave juries an “untram-meled discretion to impose or withhold the death penalty.”2 In a nowfamous quote, Justice Stewart wrote in his concurrence that it was “crueland unusual in the same way that being struck by lightning is cruel andunusual.”3 Juries could simply impose the death penalty in an arbitraryand capricious manner.4 Justice Stewart went on to say, “I simply con-clude that the Eighth and Fourteenth Amendments cannot tolerate theinfliction of a sentence of death under legal systems that permit thisunique penalty to be so wantonly and so freakishly imposed.”5 As itstood, there were no objective standards as to in which cases the deathpenalty should be properly imposed on a defendant.6

    * Capital lawyer and Adjunct Professor, University of Miami School of Law.1. 408 U.S. 238 (1972) (per curiam).2. Gregg v. Georgia, 428 U.S. 153, 196 n.47 (1976) (plurality opinion) (discussing the

    holding of Furman).3. Furman, 408 U.S. at 309 (Stewart, J., concurring).4. See id. at 309–10.5. Id. at 310.6. See id. at 313 (White, J., concurring) (“[T]he death penalty is exacted with great

    infrequency even for the most atrocious crimes and . . . there is no meaningful basis fordistinguishing the few cases in which it is imposed from the many cases in which it is not.”).


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    As a result of Furman, states passed new death sentencing schemesin order to overcome this “it just strikes by lightening” problem. Thirty-five states passed new legislation attempting to narrow those who couldbe sentenced to death and setting out the procedures and safeguards forsentencing someone to death.7 Four years later, Justice Stewart joinedthe plurality in upholding the death penalty in Gregg v. Georgia.8 Geor-gia had created a “carefully drafted statute”9 that ensured that, in a bifur-cated proceeding (guilt/innocence and penalty), the sentencer is givenadequate information and guidance relevant to the imposition of thedeath penalty.10 There must be “specific jury findings as to the circum-stances of the crime or the character of the defendant.”11 Justices Black-mun and Stevens joined Justice Stewart’s plurality opinion.12 A decisionreleased the same day, Proffitt v. Florida,13 upheld the sentencingscheme in Florida. Justices Powell, Stewart, and Stevens (with fourother justices concurring) found that under the Florida statutes, the trialjudge was required to “weigh the statutory aggravating and mitigatingcircumstances,” as well as the facts of the crime,14 “when he determinesthe sentence to be imposed on a defendant,”15

    There was some discussion then about whether a judge and not ajury could make the final decision.16 The plurality stated that it “neversuggested that jury sentencing is constitutionally required. And it wouldappear that judicial sentencing should lead, if anything, to even greaterconsistency in the imposition at the trial court level of capital punish-ment, since a trial judge is more experienced . . . than a jury . . . .”17 Andsince any risk of arbitrary and capricious sentencing would be mini-mized by a review of the Florida Supreme Court, the Florida statute wasconstitutional.18 A bifurcated trial, specified aggravating and mitigatingfactors, and a subsequent review by the Florida Supreme Court as toproportionality satisfied the Court’s concerns for any challenges to theconstitutionality of the death penalty.19 The Court concluded that “[t]heFlorida capital-sentencing procedures thus seek to assure that the death

    7. Gregg, 428 U.S. at 179–80.8. Id. at 158, 207.9. Id. at 195.

    10. Id. at 162–68 (discussing Georgia’s statutory scheme for imposing the death penalty).11. Id. at 198.12. Id. at 158.13. 428 U.S. 242 (1976) (plurality opinion).14. Id at 250.15. Id.16. Id. at 252.17. Id.18. Id. at 252–53.19. Id. at 245–46, 250–53.

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    penalty will not be imposed in an arbitrary or capricious manner.”20

    In Proffitt, the Court went on to address the challenge to the Floridasentencing scheme that arbitrariness is inevitable because discretion canbe exercised at every stage of a prosecution.21 The challenger alsoargued that the new sentencing scheme did not end the arbitrary “inflic-tion of death” because the aggravating and mitigating circumstanceswere overbroad and vague and the statute provided no guidance “as tohow the mitigating and aggravating circumstances should be weighed inany specific case.”22 All these challenges were rejected by the Court.23

    The plurality also stated:While the various factors to be considered by the sentencing authori-ties do not have numerical weights assigned to them, the require-ments of Furman are satisfied when the sentencing authority’sdiscretion is guided and channeled by requiring examination of spe-cific factors that argue in favor of or against imposition of the deathpenalty, thus eliminating total arbitrariness and capriciousness in itsimposition.24

    It then concluded:The directions given to judge and jury by the Florida statute are

    sufficiently clear and precise to enable the various aggravating cir-cumstances to be weighed against the mitigating ones. . . .. . . .Th[e] legislation provides that there shall be an informed, focused,guided, and objective inquiry into the question whether he should besentenced to death.25

    In Florida, there must be at least one statutory “aggravating” factor pre-sent before the state is permitted to seek death.26

    For the next thirty-six years, the U.S. Supreme Court decided liter-ally hundreds of cases which refined, redefined, ignored, or changed ele-ments of the death penalty. The Florida Supreme Court has dealt withmany more than that. But the fundamental question after Gregg andProffitt, which has plagued the death penalty world ever since, remains:Is this “focus on the individual circumstances of each homicide and eachdefendant,”27 theoretically and as applied, enough to overcome the basic“strikes by lightening” problem?

    20. Id. at 252–53.21. See generally id. at 254–58.22. Id. at 254.23. See id. at 254–59.24. Id. at 258.25. Id. at 258–59 (emphasis added).26. FLA STAT. § 921.141(3)(a).27. Id. at 252.

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    This discussion begins with a general inquiry into whether subse-quent death penalty decisions in Florida—whether by the jury, the trialcourt, or the Florida Supreme Court—were “informed, focused, guided,and objective.”28 Many questions remain as to just how specific andnarrowed the death penalty system in Florida is and how should it betailored to bolster the claim that it is no longer applied in an arbitraryand capricious manner nor “wantonly and . . . freakishly imposed.”29

    How much of a focused and guided inquiry is constitutionally sufficientand is it only “total” arbitrariness and capriciousness that causes a con-stitutional defect? What about substantial arbitrariness and capricious-ness? Can a jury and a judge ever weigh the aggravating factors againstthe mitigating factors in an “objective” way? Have the Florida legisla-ture and the Florida Supreme Court expanded the cases in which deathcan be imposed contrary to the spirit and holding of Proffitt?


    Section 921.141 of the Florida Statutes sets out the procedures andcriteria for the imposition of the death penalty.30 If the state seeks deathin the first instance31 (more on this below), then once a person is con-victed of first-degree murder there will be a separate proceeding as tothe death penalty.32 The jury shall render an “advisory sentence” to thecourt, to which the court must give great weight.33 The court shall thenweigh the proven aggravating factors against the mitigating factors anddecide which to give the greater weight.34 If the aggravating factors out-weigh the mitigating factors, then death is the proper sentence.


    Again, the purpose of specific statutory aggravating factors was tonarrow the kinds of cases in which one could be sentenced to death.35 InProffitt, the U.S. Supreme Court stated, “On their face these procedures,like those used in Georgia, appear to meet the constitutional deficiencies

    28. See id. at 259.29. Furman v. Georgia, 408 U.S. 238, 310 (1972) (Stewart, J., concurring).30. FLA. STAT. § 921.141 (2012).31. According to the Florida Rules of Criminal Procedure, “[a] capital trial is defined as any

    first-degree murder case in which the State has not formally waived the death penalty on therecord.” FLA. R. CRIM. P. 3.112(B).

    32. FLA. STAT. § 921.141(1).33. FLA. STAT. § 921.141(2). However, “[i]n order to sustain a sentence of death following a

    jury recommendation of life, the facts suggesting a sentence of death should be so clear andconvincing that virtually no reasonable person could differ.” Tedder v. State, 322 So. 2d 908, 910(Fla. 1975) (per curiam) (emphasis added).

    34. FLA. STAT. § 921.141(3).35. See Zant v. Stephens, 462 U.S. 862, 877 (1983).

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    identified in Furman. The sentencing authority in Florida, the trial judge,is directed to weigh eight aggravating factors against seven mitigat-ing [14] factors to determine whether the death penalty shall beimposed.”36

    However, the number of aggravating factors in Florida hasexpanded dramatically since the U.S. Supreme Court first ruled in Prof-fitt.37 In fact, the legislature has doubled the number of aggravating fac-tors that were present in 1976—from eight to now sixteen.38 Someexamples of aggravating factors that have come into existence subse-quent to Proffitt are if the victim was a law-enforcement officer in theperformance of his or her duties,39 if the victim was an elected official inthe performance of his or duties,40 if the victim was under twelve yearsof age,41 if the crime was committed by a “gang member,”42 or if thevictim was an older, vulnerable person due to advanced age.43 If one ofthese new aggravators exists, the state can seek death.

    The problem with many of these post-Proffitt aggravating factors—apart from significantly expanding those who would now be eligible forthe death penalty—is that the focus shifts more and more to who thevictims are rather than who the defendant is and whether he should orshould not be executed for the crime. In an otherwise non-capital case,the fact that the victim was a policeman, a government official, a childunder twelve years of age, or a vulnerable person of advanced age wouldnow tend to make it a capital case. There are many instances in which aperson who would not be eligible for the death penalty at the time ofProffitt would now be eligible.

    IV. RACE

    The U.S Supreme Court failed to deal with the fundamental Ameri-can problem of race when it concluded in McCleskey v. Kemp44 that acomprehensive study by academic David Baldus, showing the “raciallydisproportionate impact” of the death penalty in Georgia, was notenough to overturn a death sentence.45 A defendant must fail in his chal-lenge to the sentence if he cannot show that it was the result of an actual

    36. Proffitt v. Florida, 428 U.S. 242, 251 (plurality opinion) (emphasis added).37. See FLA. STAT. § 921.141(5)(a)-(p) (2012).38. Id.39. Id. § 921.141(5)(j).40. Id. § 921.141(5)(k).41. Id. § 921.141(5)(l).42. Id. § 921.141(5)(n).43. Id. § 921.141(5)(m).44. 481 U.S. 279 (1987).45. See id. at 298–99, 319.

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    “discriminatory purpose.”46 The Court went on to say that a defendant“must prove that the decisionmakers in his case acted with discrimina-tory purpose,”47 and dismissed evidence of general disparities in sen-tencing, such as the Baldus study, as “an inevitable part of our criminaljustice system.”48

    Race has always been an issue in death penalty cases.49 In his con-currence in Furman, Justice Stewart said, “My concurring Brothers havedemonstrated that, if any basis can be discerned for the selection of thesefew to be sentenced to die, it is the constitutionally impermissible basisof race. But racial discrimination has not been proved, and I put it to oneside.”50

    In 2012, 59% of those on Florida’s death row were white, 37%were black, and 4% were Hispanic.51 A 2006 report by the AmericanBar Association found that while Florida has undertaken three initiativesexploring the impact of racial discrimination in the criminal justice sys-tem, Florida “should fully investigate and evaluate the impact of racialdiscrimination . . . and develop strategies that strive to eliminate it.”52

    In 1991, researchers Michael L. Radelet and Glenn L. Piercereviewed the empirical research on Florida and found that eleven differ-ent studies “give strong evidence of racial disparities in capital sentenc-ing in Florida.”53 A more recent study concluded that the “racialcomposition of the jury pool has a substantial impact on convictionrates.”54 All-white jury pools in Florida convicted black defendants six-teen percent more often than white defendants.55 In cases with no blackpotential jurors in the jury pool, black defendants were convicted eighty-

    46. See id. at 297–99.47. Id at 292.48. Id. at 312.49. See Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial

    Discrimination in Infliction of the Death Penalty, 35 SANTA CLARA L. REV. 433, 433 (1995)(stating that the death penalty has always disproportionately affected the poor and racialminorities).

    50. Furman v. Georgia, 408 U.S. 238, 310 (1972) (Stewart, J., concurring) (footnotes andcitation omitted).

    51. Death Row Roster, FLA. DEP’T. OF CORR., http://www.dc.state.fl.us/activeinmates/deathrowroster.asp.

    52. ABA DEATH PENALTY MORATORIUM IMPLEMENTATION PROJECT & FLA. DEATH PENALTYASSESSMENT TEAM, EVALUATING FAIRNESS AND ACCURACY IN STATE DEATH PENALTY SYSTEMS:THE FLORIDA DEATH PENALTY ASSESSMENT REPORT 353–55 (2006) [hereinafter ABA PROJECT],available at http://www.americanbar.org/content/dam/aba/migrated/moratorium/assessmentproject/florida/report.authcheckdam.pdf.

    53. Michael L. Radelet & Glenn L. Pierce, Choosing Those Who Will Die: Race and theDeath Penalty in Florida, 43 FLA. L. REV. 1, 16 (1991).

    54. Shamena Anwar et al., The Impact of Jury Race in Criminal Trials, 127 Q. J. ECON. 1017,1020 (2012).

    55. Id. at 1035.

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    one percent of the time, while white defendants were convicted sixty-sixpercent of the time.56 When at least one member of the jury pool wasblack, the conviction rates for white (73%) and black (71%) defendantswere nearly identical.57

    In its 2006 report, the ABA concluded that “Jurisdictions shouldfully investigate and evaluate the impact of racial discrimination in theircriminal justice systems and develop strategies that strive to eliminateit.”58 The 2006 ABA report came up with ten recommendations to dealwith the unresolved problem of race as a factor in capital cases.59 Flor-ida, like other states, has failed to adequately deal with the fundamentalissue of race and fairness.


    One of the statutory aggravating factors in Florida is felony mur-der.60 Section 921.141(5)(d) of the Florida Statutes states that if the kill-ing “was committed while the defendant was engaged, or was anaccomplice in, the commission of [certain enumerated felonies],” thiswould be an aggravating factor and thus make one eligible for death.61

    The felony-murder doctrine is that if one commits a specified felony anda murder takes place, it does not matter if the perpetrator had no intent tokill.62 Because a person was committing an underlying felony, that per-son is responsible for all the consequences, intended and unintended. Ifone commits a specified underlying crime (e.g., robbery, sexual battery,aggravated child abuse, arson, or burglary) and a killing occurs, thiswould be an aggravating factor that would make one eligible for death inFlorida.63

    The Florida Supreme Court defends this aggravating factor byclaiming that it does narrow the imposition of the death penalty:

    Eligibility for this aggravating circumstance is not automatic: The listof enumerated felonies in the provision defining felony murder islarger than the list of enumerated felonies in the provision definingthe aggravating circumstance of commission during the course of anenumerated felony. A person can commit felony murder via traffick-ing, carjacking, aggravated stalking, or unlawful distribution, and yetbe ineligible for this particular aggravating circumstance. This

    56. Id. at 1019.57. Id.58. ABA PROJECT, supra note 52, at 351 (Recommendation #1).59. See id. at 353–66.60. FLA. STAT. § 921.14(5)(d) (2012).61. Id.62. Lewis v. State, 34 So. 3d 183, 184 (Fla. Dist. Ct. App. 2010).63. FLA. STAT. § 921.14(5)(d) (2012).

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    scheme thus narrows the class of death-eligible defendants.64

    But given all the aggravating factors and the fact that almost all thefelony-murder crimes are aggravating, it is very difficult to find a first-degree murder case in which there is not at least one aggravating fac-tor.65 The overall effect of this is to widen rather than narrow in anymeaningful way the cases in which death can be sought.66

    Now first-degree murder, when perpetrated with a premeditateddesign to effect the death of another (malice aforethought), is not byitself enough to warrant the death penalty.67 So, if you intend to kill (andthat is all) you cannot get the death penalty. But, if you do not intend tokill, you can nevertheless be subject to the death penalty. Under speci-fied circumstances, such as participating in a robbery when the “degreeof participation in the crimes was major rather than minor, and therecord would support a finding of the culpable mental state of recklessindifference to human life,” a person is eligible for the death penaltyeven though he or she did not intend to kill the victim.68

    Another twist to the felony-murder statute concerns a defendantwho kills more than one person in a rage without premeditation. Thefirst person killed would not be a first-degree murder case because it wascommitted in reckless disregard for life but without any premeditation.However the second person killed—even though the intent is thesame—would nevertheless be a first-degree felony murder based on thesimultaneous murder of another human being. In other words the firstmurder was a second-degree murder, but it was also an enumerated fel-ony and therefore the defendant could be eligible for the death penaltyfor the second homicide.69


    One of the more serious statutory aggravating factors is “[t]hedefendant was previously convicted of another capital felony or of afelony involving the use or threat of violence to the person.”70 It wouldappear at first blush that this is meant to punish someone who was andcontinues to be violent. This is sometimes, but not always, the case.

    64. Blanco v. State, 706 So. 2d. 7, 11 (Fla. 1997) (emphasis added) (footnotes omitted).65. See O.H. Eaton, Jr., Capital Punishment: An Examination of Current Issues and Trends

    and How These Developments May Impact The Death Penalty in Florida, 34 STETSON L. REV. 9,49 (2004).

    66. See id. (quoting Blanco, 706 So. 2d at 12 (Anstead, J., concurring)).67. See FLA. STAT. § 921.14(3) (2012). (requiring the existence of an aggravating factor to

    impose the death penalty).68. Tison v. Arizona, 481 U.S. 137, 151 (1987).69. FLA. STAT. § 782.04(2)(o).70. FLA. STAT. § 921.141(5)(b) (2012).

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    Prosecutors are also permitted to use a crime committed subsequentto the charged crime to establish an aggravating factor.71 Even thoughthat crime was committed after the murder in question, the prosecutorcan still use it.72 Prosecutors often prosecute the subsequent case first inorder to create this aggravating factor. The Florida Supreme Court hasconcluded that this is a valid practice because the statute is silent onwhen the prior violent felony has to occur.73

    Moreover, the state can also use a violent crime committed simulta-neously with the current murder to establish a prior violent offense.74

    Thus if a person has no prior record for any violent felony, this aggravat-ing factor is nevertheless provable by a conviction for another violentcrime that happened at the same time as the murder.75 For example, if aperson commits two homicides, these are considered separate violentacts.76 The Florida Supreme Court “has repeatedly held that where adefendant is convicted of multiple murders, arising from the same crimi-nal episode, the contemporaneous conviction as to one victim may sup-port the finding of the prior violent felony aggravator as to the murder ofanother victim.”77 Although it would carry considerably less weight,even a simultaneous aggravated assault is admissible to prove a priorviolent felony.78


    One of the most serious aggravating factors is cold, calculated, andpremeditated killing (“CCP”). The Florida Supreme Court has said thatCCP is something much more than regular premeditation, which is mal-ice aforethought.79 It would be “heightened premeditation.”80 While ithas never been clear how much premeditation would have to be height-ened, the Florida Supreme Court has continuously expanded the circum-stances that could show this “heightened premeditation.”

    Historically, in order to establish the CCP aggravating factor, theevidence must show

    that the killing was the product of cool and calm reflection and not anact prompted by emotional frenzy, panic, or a fit of rage (cold), and

    71. Knight v. State, 746 So. 2d 423, 434 (Fla. 1998) (per curiam) (citing Elledge v. State, 346So. 2d 998 (Fla. 1977)).

    72. See id.73. See Elledge, 346 So. 2d at 1001.74. Snelgrove v. State, 37 Fla. L. Weekly S303, S308 (Fla. Apr. 19, 2012) (per curiam).75. Id.76. Frances v. State, 970 So. 2d 806, 816–17 (Fla. 2007) (per curiam).77. Francis v. State, 808 So. 2d 110, 136 (Fla. 2001) (per curiam).78. See Scott v. State, 66 So. 3d 923, 935 (Fla. 2011) (per curiam).79. See Hudson v. State, 992 So. 2d 96, 115–16 (Fla. 2008) (per curiam).80. Id.

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    that the defendant had a careful plan or prearranged design to commitmurder before the fatal incident (calculated), and that the defendantexhibited heightened premeditation (premeditated), and that thedefendant had no pretense of moral or legal justification.81

    “‘CCP involves a much higher degree of premeditation’ than is requiredto prove first-degree murder.”82

    Careful planning can now be just before the crime itself.83 TheFlorida Supreme Court has also widened the circumstances in which a“careful plan” can be made by not requiring much thinking to go into aplan to be considered “careful.”84 It has simultaneously expanded thecircumstances in which the state can demonstrate “heightened premedi-tation” and the kind of evidence that can arguably show that this height-ened premeditation is present.

    For example, the Florida Supreme Court has cited the defendant’sprocurement of a weapon in advance of the crime as indicative of prepa-ration and a heightened premeditated design.85 Heightened premedita-tion can be also be established by examining the circumstances of thekilling and the conduct of the accused. The CCP aggravating factor “canalso be indicated by . . . lack of resistance or provocation, and theappearance of a killing carried out as a matter of course.”86

    In Buzia v. State,87 the Florida Supreme Court found that thedefendant

    had the opportunity to leave the residence with the [victim’s] moneyand valuables without committing further harm. We have “found . . .heightened premeditation . . . where a defendant had the opportunityto leave the crime scene and not commit the murder but, instead,commit[ted] the murder.” We conclude in part that, by remainingthere and murdering [the victim], Buzia developed “heightenedpremeditation.”88

    81. Evans v. State, 800 So. 2d 182, 192 (Fla. 2001) (per curiam) (quoting Jackson v. State,648 So. 2d 85, 89 (Fla. 1994) (per curiam)).

    82. Deparvine v. State, 995 So. 2d 351, 381–82 (Fla. 2008) (per curiam) (quoting Foster v.State, 778 So. 2d 906, 921 (Fla. 2001) (per curiam)).

    83. See Mason v. State, 438 So. 2d 374, 379 (Fla. 1983) (concluding that breaking into ahouse, procuring a weapon inside the house, and attacking the victim in her bed demonstratedsufficient planning to qualify as CCP).

    84. See, e.g., Ford v. State, 802 So. 2d 1121, 1133 (Fla. 2001) (holding that killing qualifiedas CCP where defendant used multiple weapons and had to stop and reload the weapons prior toshooting the victims); Walls v. State, 641 So. 2d 381 (Fla. 1994) (holding that the killing wascalculated when defendant tied up the victim and taunted her prior to killing her).

    85. Bell v. State, 699 So. 2d 674, 677 (Fla. 1997) (per curiam).86. Swafford v. State, 533 So. 2d 270, 277 (Fla. 1988) (per curiam); see also Thompson v.

    State, 648 So. 2d 692, 696 (Fla. 1994) (per curiam) (explaining that defendant took precaution ofcarrying a gun and a knife with him to a meeting with the victims).

    87. 926 So. 2d 1203 (Fla. 2006) (per curiam).88. Id. at 1214–15 (alteration in original) (citations omitted).

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    The court went on to say:Most importantly, during this final lapse of time, Buzia procured

    his own weapon. “[T]he facts supporting [the CCP aggravator] mustfocus on the manner in which the crime was executed, e.g., advanceprocurement of weapon, lack of provocation, killing carried out as amatter of course. . . .” We have found the CCP aggravator where thedefendant procured a weapon beforehand. However, such procure-ment need not [30] be that far in advance. In Jackson, the defendantwent upstairs, obtained a gun, and made a deliberate and consciouschoice to shoot a law enforcement officer. We found heightened pre-meditation because the defendant could have left the scene, butinstead purposely returned with the gun to confront the officer. Wehave found the CCP aggravator in other cases where the defendantdid not procure his own murder weapon before arriving at thescene.89

    It is increasingly more and more difficult to distinguish what is andis not CCP and just how heightened the premeditation must be. Again,the Florida Supreme Court has expanded the criteria under which anaggravating factor can be established and proven. In so doing, it has alsoonce again expanded rather than narrowed the circumstances underwhich a person can be sentenced to death.


    Subsequent to Proffitt, Florida adopted a statute that now permits“victim impact” testimony in the sentencing phase of a capital case.90

    “[T]he prosecution may introduce, and subsequently argue, victimimpact evidence to the jury. Such evidence shall be designed to demon-strate the victim’s uniqueness as an individual human being and theresultant loss to the community’s members by the victim’s death.”91 InPayne v. Tennessee92 the U.S. Supreme Court overruled its precedentand stated, “We thus hold that if the State chooses to permit the admis-sion of victim impact evidence and prosecutorial argument on that sub-ject, the Eighth Amendment erects no per se bar.”93

    The problem is that victim impact testimony can be very prejudicialbecause it focuses the jury’s attention on the emotions of the victim’sfamily and friends instead of the facts that should be considered, such asthe circumstances of the crime and the character of the defendant.94 The

    89. Id. at 1215 (alterations in original) (emphasis added) (citations omitted).90. See FLA. STAT. § 921.141(7) (2012).91. Id.92. 501 U.S. 808 (1991).93. Id. at 827.94. See id. at 860–61, 864 (Stevens, J., dissenting).

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    risk that the jury will make an emotional and not a rational decision isvery much enhanced.

    In Florida, the sentencing procedures are that a jury must weigh theaggravating factors against the mitigating factors.95 It is difficult to fig-ure out how this victim impact evidence is to be incorporated into thejury’s recommendation. The jury is later instructed by the judge:

    You have heard evidence about the impact of this homicide on the1. family, 2. friends, 3. community . . . . However, you may not con-sider this evidence as an aggravating circumstance. Your recommen-dation to the court must be based on the aggravating circumstancesand the mitigating circumstances upon which you have beeninstructed.96

    Any juror would think that if victim impact evidence is presentedand argued then he or she could indeed consider it as an aggravatingfactor. It is counterintuitive (and indeed intellectually dishonest) to allowa jury to hear this and then tell the jury that it cannot consider this emo-tional evidence when determining aggravating factors.


    In Florida it is the judge who ultimately sentences the defendantgiving “great weight and deference by the Court in determining whichpunishment to impose.”97 All but three states (Florida, Alabama andDelaware) “require, at least, a unanimous jury finding of aggravators.”98

    In Florida, if the recommendation by the jury is seven in favor of deathand five in favor of life, that is nevertheless a death recommendation.99

    Florida is the only state that allows over forty percent of the jury tobelieve that life is the appropriate sentence and yet the recommendationis death. Judges are required to give great weight to the jury’s recom-mendation.100 In the vast majority of cases, judges will follow the rec-ommendation of the jury.

    In 2005, the Florida Supreme Court, in State v. Steele, urged thelegislature to change the sentencing law before it was subject to a consti-tutional challenge:

    The bottom line is that Florida is now the only state in the coun-try that allows the death penalty to be imposed even though the pen-

    95. See generally FLA. STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES 7.11 (2012[ hereinafter JURY INSTRUCTIONS], available at http://www.floridasupremecourt.org/jury_instructions/chapters/entireversion/ onlinejurryinstructions.pdf.

    96. Id. (emphasis added).97. Id.98. State v Steele. 921 So. 2d 538, 548 (Fla. 2005).99. Id. at 550.

    100. JURY INSTRUCTIONS, supra note 95, at 7.11.

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    alty-phase jury may determine by a mere majority vote both whetheraggravators exist and whether to recommend the death penalty.Assuming that our system continues to withstand constitutional scru-tiny, we ask the Legislature to revisit it to decide whether it wantsFlorida to remain the outlier state.101

    Moreover, there is no requirement for a special verdict form for jurors tofind the same aggravating factor beyond a reasonable doubt.

    As retired Florida Supreme Court Justice Cantero stated, “if a capi-tal sentencing scheme requires only a simple majority to decide whether[aggravating] factors exist and determine their relative weight, it willstill fail to produce ‘consistent and rational’ outcomes or ‘minimize therisk of wholly arbitrary and capricious action’” as prohibited by Greggand Proffitt.102

    For many, the fact that the judge makes the final decision and notthe jury flies in the face of Ring v. Arizona.103 In Ring, the U.S. SupremeCourt found that Arizona’s capital sentencing scheme violated the SixthAmendment‘s jury trial guarantee by entrusting to a judge the finding ofa fact that raised the defendant’s maximum penalty to death.104 Underthe U.S. Constitution, it is the jury not the judge who is required to makesuch factual decisions.105

    Florida’s capital sentencing statute seems to be exactly the same asthe one overturned by the U.S. Supreme Court in Ring. Like Arizona,the death penalty is imposed after the judge makes factual findings as tothe existence of aggravating factors.106 Further, “[n]otwithstanding therecommendation of a majority of the jury, the court, after weighing theaggravating and mitigating circumstances, shall enter a sentence of lifeimprisonment or death.”107 Like Arizona, a defendant cannot be sen-tenced to death without additional findings of fact made by the judge,not the jury.108 One of the issues was articulated by Florida SupremeCourt Justice Pariente:

    In short, what is of concern about Florida’s death penaltyscheme in light of Ring is that our statute appears to reverse the tradi-tional roles of the judge and the jury in sentencing. . . . [U]nder Flor-ida’s sentencing scheme the jury’s role is to advise the judge on thesentence, and it can make a recommendation of death based on a bare

    101. Steele, 921 So. 2d at 550.102. Raoul G. Cantero & Robert M. Kline, Death is Different: The Need for Jury Unanimity in

    Death Penalty Cases, 22 ST. THOMAS L. REV. 4, 17 (2009).103. 536 U.S. 584 (2002).104. Id. at 609.105. Id.106. See FLA. STAT. § 775.082(1) (2012); FLA. STAT. § 921.141(3) (2012).107. Id. § 921.141(3) (2012).108. See id.

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    majority. The jury does not find specific aggravating factors. Thus, itis the jury that recommends a sentence and the judge who finds thespecific aggravators.109

    In Evans v. McNeil,110 Federal District Court Judge Martinez foundanother a violation of Ring:

    As the Florida sentencing statute currently operates in practice, theCourt finds that the process completed before the imposition of thedeath penalty is in violation of Ring in that the jury’s recommenda-tion is not a factual finding sufficient to satisfy the Constitution;rather, it is simply a sentencing recommendation made without aclear factual finding. In effect, the only meaningful findings regard-ing aggravating factors are made by the judge.. . . .. . . There are no specific findings of fact made by the jury. Indeed,the reviewing courts never know what aggravating or mitigating fac-tors the jury found. It is conceivable that some of the jurors did notfind the existence of an aggravating circumstance, or that each jurorfound a different aggravating circumstance, or perhaps all jurorsfound the existence of an aggravating circumstance but some thoughtthat the mitigating circumstances outweighed them. . . . After thejury’s recommendation, there is a separate sentencing hearing con-ducted before the judge only. . . . The defendant has no way of know-ing whether or not the jury found that [sic] same aggravating factorsas the judge. Indeed, the judge, unaware of the aggravating factor orfactors found by the jury, may find an aggravating circumstance thatwas not found by the jury while failing to find the aggravating cir-cumstance that was found by the jury. . . . This cannot be reconciledwith Ring.111


    The single most pressing and difficult question in death penaltycases is how much weight to give to specific aggravating factors andmitigating factors. It is the trial judge that does the ultimate weighing ofthe aggravating and mitigating factors.112 There is simply no way to

    109. Bottoson v. Moore, 824 So. 2d 115, 121–22 (Fla. 2002) (Pariente, J., concurring)(footnote omitted).

    110. No. 08-14402-CIV-MARTINEZ, 2011 U.S. Dist. LEXIS 155138 (S.D. Fla. June 20,2011), aff’d in part and rev’d in part sub nom. Evans v. Sec’y, Fla. Dep’t of Corr., 699 F. 3d1249, 2012 U.S. App. LEXIS 22072 (11th Cir. 2012). As to the Ring issue: “And, to reiterate itone last time, the Supreme Court has told us exactly what we are to do in this situation: we mustfollow the decision that directly controls, unless and until the Supreme Court makes it non-controlling by overruling it. We understand that instruction, we have always taken it seriously, andwe follow it here.” 2012 U.S. App. LEXIS 22072, at *42.

    111. Id. at *154–58 (citations omitted).112. § 921.141(3) (2012).

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    make these decisions consistent and rational. By giving the judge theability to give whatever weight he thinks necessary to every mitigatingfactor, one invites wholly capricious and arbitrary actions. For example,one judge could hear testimony about horrific child abuse, find it indeedexisted and give it little weight. Another judge could give the exact samekind of evidence great weight. Or one judge could give great weight tothe fact that a mentally ill person’s capacity to “conform her or his con-duct to the requirements of law was substantially impaired.”113 Anotherjudge could give the exact same evidence little weight. How muchweight an aggravating factor or mitigating factor will have dependsmore on who the judge is than on what the evidence is. The ultimatedecision on whether to impose death depends far more on the exper-iences, attitudes, knowledge and proclivities of the sentencing judgethan it does on the aggravation and mitigation. The comparative weightof mitigating factors to aggravating factors is fundamental to how thesentencing process works. And yet, there is no way in which to instructor review how aggravation and mitigation should be weighed. How canthis legal fact possibly survive the original complaint of “untrammeleddiscretion”?114

    For example, as the Florida Supreme Court noted in Henyard v.State:115

    The [trial] court found Henyard’s age of eighteen at the time ofthe crime as a statutory mitigating circumstance and accorded it‘some weight.’ The trial court also found that the defendant was act-ing under an extreme emotional disturbance and his capacity to con-form his conduct to the requirements of law was impaired andaccorded these mental mitigating factors ‘very little weight.’ As fornonstatutory mitigating circumstances, the trial court found the fol-lowing circumstances but accorded them ‘little weight’: (1) thedefendant functions at the emotional level of a thirteen year old and isof low intelligence; (2) the defendant had an impoverished upbring-ing; (3) the defendant was born into a dysfunctional family . . . .116

    Another court could easily find that these mitigating factors were com-pelling and outweighed the aggravating factors.

    Yet another example of this untrammeled discretion is the recentcase of Oyola v. State.117 In Oyola, the Supreme Court of Florida wrote:

    The defense then submitted the testimony of Manuel Oyola, thebrother of Oyola. Manuel is nine years older than Oyola, and he

    113. § 921.142(7)(e).114. Furman v. Georgia, 408 U.S. 238, 248 (1972) (Douglas, J., concurring).115. Henyard v. State, 689 So. 2d 239 (Fla. 1996) (per curiam).116. Id. at 244 (footnote and citations omitted).117. Oyola v. State, 37 Fla. L. Weekly S580 (Fla. Sept. 20, 2012) (per curiam).

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    remembered Oyola at a young age while Oyola was living with theirparents in Connecticut. Manuel claimed that their parents physicallyabused Oyola, hitting Oyola and his siblings with belts, broomsticks,and pointed shoes. According to Manuel, this type of physical abuseoccurred often and was so rampant that it caused Manuel, Oyola, andtheir siblings to leave home around the age of fifteen.

    Miguel believed that their abusive home life affected Oyola’sintellectual development during childhood by hindering Oyola’sstudy habits. According to Miguel, the abuse also affected the wayOyola handled stress and emotional situations, heightening his tem-per. Miguel also testified that Oyola began using drugs when he wasapproximately twelve years old.118

    In Oyola, there was also testimony by a psychologist who foundthat the defendant had been treated for “a working diagnosis of schizo-phrenia/paranoid type, which is a form of psychosis that involves hallu-cinations and delusions.”119 This was confirmed by Oyola’s prisonmental health records.120 There was also a significant history of mentalillness in the defendant’s family.121 Nevertheless, the trial court “gaveslight weight to ‘non-statutory mitigation [that] included serious drugabuse, an abusive home life as a child [that] created a cycle of violence,and mental disorder.’”122

    There is simply no way in which to effectively review these find-ings. The Florida Supreme Court has ruled, “Where it is clear that thetrial court has considered all evidence presented in support of a mitigat-ing factor, the court’s decision as to whether that circumstance is estab-lished will be reviewed only for abuse of discretion.”123 And“[d]etermining whether a mitigating circumstance exists and the weightto be given to existing mitigating circumstances are matters within thediscretion of the sentencing court.”124

    This takes one right back to the appellant’s claim in Proffitt thatthere is “no guidance as to how the mitigating and aggravating circum-stances should be weighed in any specific case.”125 That very claim wasrejected by the U.S. Supreme Court in Proffitt.126 [19]

    118. Id. at S582.119. Id.120. Id.121. Id.122. Id. at S583 (alterations in original).123. Ault v. State, 53 So. 3d 175, 186–87 (Fla. 2010) (per curiam).124. Hurst v. State, 819 So. 2d 689, 697 (Fla. 2002) (per curiam) (emphasis added) (citation

    omitted).125. Proffitt v. Florida, 428 U.S. 242, 254 (1976) (plurality opinion).126. See id. at 255–56.

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    Perhaps the single most important factor as to whether someonewill be sentenced to death is the initial decision, made with unfettereddiscretion, by the prosecuting authority. After retiring from the U.S.Supreme Court in 2012, Justice John Paul Stevens wrote:

    Today one of the sources of such arbitrariness is the decision of stateprosecutors—which is not subject to review—to seek a sentence ofdeath. It is a discretionary call that may be influenced by the prosecu-tor’s estimate of the impact of his decision on his chances for reelec-tion or for election to higher office.127

    For example, the Fourth Judicial Circuit of Florida (Duval, Clay,and Nassau counties) is responsible for sentencing thirteen people todeath from 2004 to 2009.128 The Eleventh Judicial Circuit of Florida,which is composed of Miami-Dade County (the largest metropolitanarea in Florida with approximately 2.5 million persons), sentenced onlyfour.129 In 2011, Duval County’s per capita murder rate was 8.79murders per 100,000 residents; Miami-Dade’s was 8.66.130

    This decision to seek and impose death in a first-degree murdercase is far more a function of the current prosecutor’s decisions ratherthan the higher murder rate itself.131 In 2010, Duval County had thehighest incarceration rate in all of Florida of any jurisdiction with morethan 500,000 residents.132 Duval County sentenced thirteen people todeath from 2004 to 2009.133 Since the new prosecutor took over inAugust 2009, there have been seventeen people sentenced to death inDuval County.134 The prosecutor in the Fourth Judicial Circuit has nowritten policies or procedures as to when and how to seek the deathpenalty. The prosecutor in Miami-Dade County does. There were twopeople sentenced to death since 2010 in Miami-Dade County.135 This is

    127. John Paul Stevens, A Struggle with the Police & the Law, N.Y. REV. BOOKS, Apr. 5,2012, at 56, 56 (reviewing IRVING MORRIS, THE RAPE CASE: A YOUNG LAWYER’S STRUGGLE FORJUSTICE IN THE 1950S (2011)).

    128. Robert J. Smith, The Geography of the Death Penalty and its Ramifications, 92 B.U. L.Rev. 227, 232 & n.15 (2012).

    129. Id. at 242 & n.96.130. Dana Treen, Violent crime rates drop but Duval edges to top in Florida murders for 2011,

    JACKSONVILLE.COM (May 1, 2012, 10:08 AM), http://jacksonville.com/news/crime/2012-04-30/story/violent-crime-rates-drop-duval-edges-top-florida-murders-2011.

    131. See Michael Hallett & Daniel Pontzer, No Peace Dividend for Duval? Posing QuestionsAbout Jacksonville’s Civic Infrastructure, SMART JUST. J., Spring 2012, at 1, 10–11, available athttp://www. unf.edu/uploadedfiles/aa/coas/ccj/faculty/hallett_no_peace_dividend_for_duval.pdf.

    132. Id. at 10.133. Smith, supra note 128, at 232 & n.15.134. See Death Row Roster, FLA. DEPARTMENT CORRECTIONS, http://www.dc.state.fl.us/active

    inmates/deathrowroster.asp (last visited Nov. 28, 2012).135. See id.

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    because there is no legislation or statewide regulation of prosecutors.Nor is there any mechanism in place to ensure that, statewide, the samecriteria and factors are considered as to when to seek or waive death.Rather, the elected prosecutor in each of the twenty judicial circuits ofFlorida can make different decisions as whether to seek death in the firstinstance, whether to waive death in return for a plea, or not to waive thedeath penalty. State law does not require state attorneys’ offices to haveany written policies regarding the exercise of prosecutorial discretion. Itis up to each prosecutor as to when and what they will do when at leastone of the statutory aggravating factors exists.

    Thus, where the crime is committed in Florida, who the prosecutoris in that jurisdiction, what that prosecutor’s attitudes are with respect tothe death penalty, and whether the prosecutor is facing reelection willhave a much greater impact on the decision as to whether a personshould receive a life or death sentence.136 There is no objectivity in thiskind of decision-making process.


    In Proffitt, a plurality of the U.S. Supreme Court wrote:[T]o assure that the death penalty will not be imposed on a capri-ciously selected group of convicted defendants[,] [t]he SupremeCourt of Florida reviews each death sentence to ensure that similarresults are reached in similar cases.. . . .In fact, it is apparent that the Florida court has undertaken responsi-bility to perform its function of death sentence review with a maxi-mum of rationality and consistency.137

    Each case “is reviewed and reweighed by the Supreme Court of Florida‘to determine independently whether the imposition of the ultimate pen-alty is warranted.’”138

    According to a study by Professor James Liebman and others, thereversal rate on direct appeal for Florida death penalty cases was 49%between 1973 and 1995, and it was 17% for state post-convictionlitigation.139

    Now, however, “the Florida Supreme Court’s average rate of vacat-

    136. See Stevens, supra note 127, at 56.137. Proffitt v. Florida, 428 U.S. 242, 258–59 (1976) (plurality opinion).138. Id. at 253 (quoting Songer v. State, 322 So. 2d 481, 484 (Fla. 1975)).139. James S. Liebman, Jeffrey Fagan & Valerie West, A Broken System: Error Rates in

    Capital Cases, 1973–1975, at 45, 48 (Columbia Law Sch. Pub. Law & Legal Theory WorkingPaper Grp., Paper No. 15, 2000), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=232712.

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    ing death sentences significantly decreased from 20 percent for the1989-1999 time period to 4 percent for the 2000-2003 time period.”140

    There has been a gradually decreasing number of reversals (with someoscillation) since 1989.141

    How does one account for this? According to the ABA report,“political pressure from the executive and legislative branches regardingthe disposition of death penalty appeals and the changing composition ofthe Court appear to have caused the court to engage in a less vigorousproportionality review and, in turn, vacate fewer death sentences on pro-portionality grounds.”142 Moreover, the Florida Supreme Court onlyreviews cases in which the death penalty has been imposed and com-pares them with other cases in which it was imposed but reversed.143

    The Florida Supreme Court does not look for cases in which the deathpenalty was imposed compared to cases in which the death penalty waswaived before trial.144

    The ABA report went on to say that:[T]he Florida Supreme Court is no longer holding true to its own rulethat proportionality review should be a “qualitative review . . . of theunderlying basis for each aggravator and mitigator” and not simply acomparison between the number of aggravating and mitigating cir-cumstances. Because the Court uses a “precedent-seeking” or “com-parative culpability” approach in its proportionality review, whichlimits its review only to cases in which a death sentence has beenimposed, the Court must determine what “level of aggravation is suf-ficiently low” and what “level of mitigation is sufficiently high toraise concerns of arbitrariness.”145

    In the ABA report’s chapter entitled “Direct Appeal Process,” rec-ommendation number one was:

    In order to (1) ensure that the death penalty is being administered in arational, non-arbitrary, manner, [and] (2) provide a check on broadprosecutorial discretion, . . . direct appeals courts should engage inmeaningful proportionality review that includes cases in which adeath sentence was imposed, cases in which the death penalty wassought but not imposed, and cases in which the death penalty couldhave been sought but was not.146

    140. ABA PROJECT, supra note 52, at 212.141. See Phillip L. Durham, Review in Name Alone: The Rise and Fall of Comparative

    Proportionality Review of Capital Sentences by the Supreme Court of Florida, 17 ST. THOMAS L.REV. 299, 318 Figure 1 (2004).

    142. –ABA PROJECT, supra note 52, at 213 (citing Durham, supra note 141, at 343–48).143. See id. at 212–13.144. See id.145. Id. at 213 (footnotes omitted).146. Id. at 212.

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    The proportionality review promised by Proffitt has been significantlyreduced by the politics and the personalities involved in the death pen-alty. This too has had a significant effect on the expansion of the typesof cases in which the death penalty can be sought and imposed.


    Nearly every person facing death receives a public defenderbecause it is rare that anyone can afford to pay the many and large costsof a capital case. The amount of money that should be afforded someonefacing death is significant. The American Bar Association’s Guidelinesfor the Appointment and Performance of Defense Counsel in Death Pen-alty Cases lays out the many things that must be done by lawyers pre-paring for a death penalty case: extensive records gathering, extensiveclient interviewing (often requiring overcoming the barriers of shame ordenial), mental health evaluations, potential witness interviews, andreviews of medical history, family and social history, educational his-tory, military history, employment history, and juvenile history.147 Asstated in the ABA’s guidelines, “The collection of corroborating infor-mation from multiple sources—a time consuming task—is importantwherever possible to ensure the reliability and thus persuasiveness of theevidence.”148

    The guidelines also require a mitigation specialist and that “[t]hedefense team should contain at least one member qualified . . . to screenindividuals for the presence of mental or psychological disorders. . . .”149 All this mitigation work requires significant time and funding.It is necessary for a presentation of all of the mitigating evidence availa-ble so that a sentencer can make a full and informed decision on whetherto sentence someone to death. Therefore, a public defender’s office musthave the funds, resources, and personnel available to meet the demandsof a death penalty case.

    Public defender offices in Florida are not funded adequately to dowhat is necessary to prepare and litigate all the death penalty cases thatare assigned to them.150 Public defenders must choose where to spendthe limited funds that are appropriated to them. Death penalty cases,when litigated properly, can take much, if not most, of those limited

    147. Am. Bar Ass’n, Guidelines for the Appointment and Performance of Defense Counsel inDeath Penalty Cases, 31 HOFSTRA L. REV. 913, 1016–26 (2003).

    148. Id. at 1025.149. Id. at 952.150. See Roberta G. Mandel, The Appointment of Counsel to Indigent Defendants Is Not

    Enough: Budget Cuts Render the Right to Counsel Virtually Meaningless, FLA. B.J., Apr. 2009, at43, 44.

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    In 2008 in Duval County, for example, a newly elected publicdefender fired very experienced and seasoned assistant public defendersand replaced them with far less experienced lawyers.152 This was, inpart, because the capital lawyers made too much money compared toother assistant public defenders. In making the decision to save moneyor to use it differently, public defenders may have to hire people far lessqualified to handle capital cases. Statewide, each public defender has tomake critical decisions as to how much of its allotted budget can andshould be spent on very expensive death penalty litigation.

    In Florida there is simply not enough money allocated to handlecapital cases in the ways required by the ABA’s standards.153 And,given these financial constraints, who the public defender is, what kindof lawyers she hires, and the kinds of preparation skills the hired lawyershave are critical to death penalty litigation.

    As discussed above, the justice system relies on lawyers who arepaid and experienced enough to do all the things necessary to present tothe jury everything that it needs to know in order to make a full, well-informed, and intelligent decision as to whether a defendant deserveslife or death. Most death penalty cases involve extensive litigation,investigation, and preparation. Again, according to the ABA’s guide-lines, attorneys spend twelve times as much time on a capital case as anon-capital first-degree murder case and “recent studies indicate thatseveral thousand hours are typically required to provide appropriate rep-resentation.”154 In federal capital cases that proceeded to trial from 1990to 1997, the total number of attorney hours spent averaged 1,889.155

    In the Miami-Dade Public Defender’s Office, there are currentlynine cases for each lawyer in the Capital Litigation Unit.156 This caseload exceeds the number of cases that would ensure that the “workloadof attorneys representing defendants in death penalty cases is maintainedat a level that enables counsel to provide each client with high qualitylegal representation.”157 The Office of Criminal Conflict and CivilRegional Counsel (OCCCRC), which is the backup office for conflicts

    151. See Richard C. Dieter, Millions Misspent: What Politicians Don’t Say About the HighCosts of the Death Penalty, DEATH PENALTY INFO. CENTER (Fall 1994), http://www.deathpenaltyinfo.org/node/599.

    152. See Gwynedd Stuart, Courting Disaster, FOLIO WKLY. (Dec. 16, 2008), http://www.folioweekly.com/documents/December162008.pdf.

    153. See Mandel, supra note 150, at 44.154. Am. Bar Ass’n,Guidelines supra note 147, at 968.155. Id. At 965156. Conversation with Edith Georgi, Co-coordinator, Capital Litigation Unit, Office of the

    Public Defender in the Eleventh Judicial Circuit of Florida.157. Am. Bar Ass’n Guidelines, supra note 147, at 965–969.

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    filed by the public defender in Miami-Dade, is (as of late 2012) nottaking new capital appointments and will move to have itself removed ascounsel on existing capital cases because, given the limited resourcesallocated, it cannot provide effective assistance of counsel.158


    If the Public Defender and OCCCRC both conflict, then the casewill go to private court-appointed counsel.159 Under current law, themaximum amount the Justice Administration Commission will pay for adeath penalty case at the trial level is $15,000.160 One can only go overthis cap if granted permission from a judge.161 And there are extensiveprocedures in place to prove that one was required to exceed the statu-tory cap (e.g., affidavits, review by the Justice Administrative Commis-sion, an evidentiary hearing).162 If one can prove that “extraordinary andunusual efforts” were necessary, then one can receive $100.00 per hourfor additional hours necessary.163 One cannot bill for any interimexpenses and must wait until the case is completed to receive payment(even though capital cases routinely go on for far more than a year).164

    In 2012, the Florida Legislature amended section 27 of the Florida Stat-utes which now provides that if the money allotted to pay the expensesof attorneys fees exceeds the amount appropriated for this purpose, thenthe funds shall be paid by the Justice Administrative Commission165—inother words, the courts’ budget. This creates an obvious conflict of inter-est166 because a judge will have to measure her budget against a defen-dant’s right to effective representation. Another effect of this legislationis that better lawyers will get off the appointment list because of thedisincentive to register.


    The state has a financial incentive to file death penalty cases, evenif, in the end, the death penalty will be waived. There is they have a

    158. Conversation with Kelly Peterson, Office of Criminal Conflict and Civil RegionalCounsel in the 11th Judicial Circuit of Florida.

    159. See FLA. STAT. § 27.5304 (2012).160. FLA. STAT. § 27.5304(5)(a)(4) (2012).161. § 27.5304(12).162. See id.163. § 27.5304(12)(d).164. See id. In Federal court, a lawyer is currently paid $178 per hour and there is no cap. 7A

    JUDICIAL CONFERENCE OF THE U.S., GUIDE TO JUDICIARY POLICY § 630.10.10 (2011), available athttp://www.uscourts.gov/uscourts/FederalCourts/AppointmentOfCounsel/vol7/Vol_07.pdf.

    165. § 27.5304(12)(f)(2).166. Miami Dade Circuit Court Judge Victoria Sigler indeed found this to be a conflict of

    interest in State v. Martin, F11-003648, at *5–6 (Fla. Cir. Ct. Oct. 24, 2012).

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    much better chance of getting much needed state funding if they haveforty death cases as opposed to twenty death cases on their books. If theprosecutor does not seek death, other prosecutors in the state will getmoney and she will not. Who the individual prosecutor is in the sameoffice will oftentimes will determine whether it is a death case or not.Different prosecutors have different perspectives on the same case.167

    Another factor in whether a case is a death penalty case is thewishes of the victim’s family as well as those of the police involved.Who the victims are in the case, whether they loudly vocalize their con-cerns, and whether they are forgiving or angry will have a significantimpact on the prosecutor’s decision as to whether to try and resolve thecase short of death. By law, the state must consider the views of thevictim.168 Does this narrow or expand the field of those eligible?Another important decisionmaker is the lead detective and other policewitnesses on the case. Does the detective want the death penalty or not?How determined is the police officer and will he push strongly for theimposition of death? Again, politically, a prosecutor would createproblems for him or herself if he or she did not consult with, and oftendefer to, the policemen involved in the case. These are just some of theeveryday realities of the death penalty world.


    Given all these factors and variables at play, one must concede thatProffitt has not narrowed the number of death penalty cases in anymeaningful way in Florida. One must also concede that the death penaltyis sought and imposed arbitrarily and—dare it be said?—capriciously.

    These many factors and systemic failures led Justice Blackmun—who dissented in Furman and who joined the pluralities in the Greggand Proffitt decisions—to say years later in Callins v. Collins:169

    Twenty years have passed since this Court declared that the deathpenalty must be imposed fairly, and with reasonable consistency, ornot at all, and, despite the effort of the States and courts to deviselegal formulas and procedural rules to meet this daunting challenge,the death penalty remains fraught with arbitrariness, discrimination,caprice, and mistake. This is not to say that the problems with thedeath penalty today are identical to those that were present 20 yearsago. Rather, the problems that were pursued down one hole with pro-

    167. In one case in Miami-Dade, one prosecutor had the case for two years and it was not acapital case. Another prosecutor received the case and filed a death notice. A third prosecutorinherited the case and did not think it was capital. A fourth prosecutor has not yet decided whetherit is capital.

    168. Fla.Stat. § 960.0021 (2012).169. 510 U.S. 1141 (1994) (denying certiorari).

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    cedural rules and verbal formulas have come to the surface some-where else, just as virulent and pernicious as they were in theiroriginal form. Experience has taught us that the constitutional goal ofeliminating arbitrariness and discrimination from the administrationof death can never be achieved without compromising an equallyessential component of fundamental fairness—individualizedsentencing.. . . .

    From this day forward, I no longer shall tinker with the machin-ery of death. For more than 20 years I have endeavored—indeed, Ihave struggled—along with a majority of this Court, to develop pro-cedural and substantive rules that would lend more than the mereappearance of fairness to the death penalty endeavor. . . . I feel mor-ally and intellectually obligated simply to concede that the death pen-alty experiment has failed.170

    In April 2008, in Baze v. Rees,171 Justice Stevens, who also joinedthe plurality in Gregg and Proffitt in upholding the death penalty, stated:

    Our decisions in 1976 upholding the constitutionality of thedeath penalty relied heavily on our belief that adequate procedureswere in place that would avoid the danger of discriminatory applica-tion identified by Justice Douglas’ opinion in Furman, of arbitraryapplication identified by Justice Stewart, and of excessiveness identi-fied by Justices Brennan and Marshall. In subsequent years a numberof our decisions relied on the premise that “death is different” fromevery other form of punishment to justify rules minimizing the risk oferror in capital cases. Ironically, however, more recent cases haveendorsed procedures that provide less protections to capital defend-ants than to ordinary offenders.172

    In 1997, the American Bar Association, which has no policy on thedeath penalty per se, passed the following resolution:

    RESOLVED, That the American Bar Association calls upon eachjurisdiction that imposes capital punishment not to carry out thedeath penalty until the jurisdiction implements policies and proce-dures that are consistent with the following longstanding AmericanBar Association policies intended to (1) ensure that death penaltycases are administered fairly and impartially, in accordance with dueprocess, and (2) minimize the risk that innocent persons may beexecuted:(i) Implementing ABA “Guidelines for the Appointment and Per-formance of Counsel in Death penalty Cases” (adopted Feb. 1989)

    170. Id. at 1143–45 (Blackmun, J., dissenting from the denial of certiorari) (footnote andcitations omitted).

    171. 553 U.S. 35 (2008) (plurality opinion).172. Id. at 84 (Stevens, J., concurring) (citations omitted).

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    and Association policies intended to encourage competency of coun-sel in capital cases (adopted Feb. 1979, Feb. 1988, Feb. 1990, Aug.1996);(ii) Preserving, enhancing, and streamlining state and federal courts’authority and responsibility to exercise independent judgment on themerits of constitutional claims in state post-conviction and federalhabeas corpus proceedings (adopted Aug. 1982, Feb. 1990);(iii) Striving to eliminate discrimination in capital sentencing on thebasis of the race of either the victim or the defendant . . . .”173

    The prominent American Law Institute concluded this past yearthat it would no longer attempt to write an update dealing with capitalpunishment in its Model Penal Code because of the “current intractableinstitutional and structural obstacles to ensuring a minimally adequatesystem for administering capital punishment.”174 The following state-ment was submitted to the ALI citing the reasons why it should adoptthat new policy:

    The foregoing review of the unsuccessful efforts to constitution-ally regulate the death penalty, the difficulties that continue to under-mine its administration, and the structural and institutional obstaclesto curing those ills forms the basis of our recommendation to theInstitute. The longstanding recognition of these underlying defects inthe capital justice process, the inability of extensive constitutionalregulation to redress those defects, and the immense structural barri-ers to meaningful improvement all counsel strongly against the Insti-tute’s undertaking a law reform project on capital punishment, eitherin the form of a new draft of § 210.6 or a more extensive set ofproposals. Rather, these conditions strongly suggest that the Instituterecognize that the preconditions for an adequately administeredregime of capital punishment do not currently exist and cannot rea-sonably be expected to be achieved.175

    Stevens, Blackmun, the ABA, and the ALI all address the flaws ofthe death penalty nationwide. But, as we have seen, the law and applica-tion of the death penalty is far worse in Florida. Regardless of one’sbeliefs in the moral acceptability of the death penalty in theory, the legal

    173. AM. BAR ASS’N, RECOMMENDATION 1 (Feb. 3, 1997) (emphasis added), available athttp://www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_moratorium/aba_policy_consistency97.authcheckdam.pdf.

    174. Debra Cassens Weiss, ALI Disavows Its Death Penalty Framework, A.B.A. J. (Jan.5, 2010, 7:31 AM), http://www.abajournal.com/news/article/ali_disavows_its_death_penalty_framework (internal quotation marks omitted).

    175. Carol S. Steiker & Jordan M. Steiker, Report to the ALI Concerning Capital Punishment,in REPORT OF THE COUNCIL TO THE MEMBERSHIP OF THE AMERICAN LAW INSTITUTE ON THEMATTER OF THE DEATH PENALTY, at Annex B 1, 49 (2009), available at http://www.deathpenaltyinfo.org/documents/alicoun.pdf.

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    and practical worlds of death are simply too arbitrary and flawed. Thereare too many variables in play and the net is ever widening, not narrow-ing. The death penalty in Florida still strikes like lightning.